As part of the parties' judgment of divorce nisi,
a Probate and Family Court judge held an antenuptial
agreement (agreement) was invalid only insofar as it
precluded the wife from receiving alimony. The husband
appealed from the judgments, including the judge's award of
alimony to the wife, and the Appeals Court affirmed.
Austin v. Austin, 62 Mass.App.Ct. 719, 819 N.E.2d 623
(2004). We granted the husband's application for further
appellate review, limited to the enforceability of the
agreement. Because we conclude that the agreement was valid
at the time it was executed and fair and reasonable at the
time of divorce, we vacate so much of the judgment that
awards alimony payments to the wife.

Facts and procedural background. The
parties met in 1984 and lived together from 1986 until 1988.
They were married in May, 1989. Two days prior to the
marriage, on May 11, 1989, the couple executed the
agreement. The judge found that the husband made the
marriage conditional on the signing of the agreement and
that the wife "was not thrilled" about signing. Both parties
sought the advice of legal counsel, but it was the draft
prepared by the wife's counsel that the parties executed.
Separate lists of each of the parties' assets were attached
to the agreement as exhibits. The husband's assets were
worth approximately $1 million, including interests in
various family businesses. The wife's assets totaled
approximately $35,000, most of which consisted of furs and
jewelry. See Austin v. Austin, supra at 720, 819
N.E.2d 623 (listing the parties' assets).

The agreement allowed the separate property
listed on the parties' exhibits to the agreement to be
retained separately. In addition, "[t]he separate property
of each party ..., including [the] increase in value of
property acquired in exchange therefor, shall remain the
sole and separate property of the party in whose name it is
titled."

All other property was to be deemed marital
property and subject to "division under the laws of the
jurisdiction which ultimately terminates ... the marriage."
The agreement provided, in relevant part, that any
appreciation on the last marital home at the time of
separation would be deemed a marital asset, subject to
division. A key provision was that, if the marital residence
was owned solely by the husband at the time of separation,
although the wife would have to vacate the home,1
the husband was required to assist the wife in relocating
and to give the wife "support based upon such considerations
as the length of the marriage, their present employment,
whether any children were born to the marriage and such
other factors as are cognizable under domestic relations and
property laws of the jurisdiction in which the parties last
resided."2
Both parties waived alimony from the other.

Over the course of their twelve-year marriage,
the couple had one child, born in 1991. By agreement, the
wife stayed home as a full-time mother, helping out
occasionally at the family's restaurant, which opened in
1999, and other businesses. In addition, in 1995, the couple
bought a house in East Sandwich, which was the marital home
at the time the wife filed for divorce in 2001. During the
marriage, the family enjoyed "an upper class lifestyle."

In a bifurcated trial, the judge first considered
evidence whether the agreement was valid. The judge found
that the parties made informed, voluntary decisions to sign
the agreement, that they represented their net worth to the
best of their abilities, and that the wife was "under
neither duress [n]or coercion when she signed the
agreement."He also found that the wife was fully advised of her rights
when she executed the agreement and that the wife, having
been divorced previously, was fully aware of her rights to
alimony, support, property division, and child support. The
judge found that, as it related to the division of property,
the agreement was fair and reasonable at the time of
execution. However, although he further found that the
wife's "waiver of alimony at that time was a knowing,
voluntary and intelligent waiver," the judge concluded that
the waiver of alimony was unfair and unreasonable at the
time the agreement was executed.

After a trial on the merits of the divorce, the
judge divided the marital assets. Relevant to our discussion
is the fact that the wife was awarded, among other things,
the marital home, valued at $1,275,000,5
$525,000 in cash, and her Lexus automobile (subject to a
loan balance of $24,575). The judge also awarded the wife
$500 per week in child support and $1,000 per week in
alimony. The husband's appeal from the alimony provision is
the sole issue before this court.6

Discussion. Antenuptial agreements that
waive alimony are not "per se against public policy and may
be specifically enforced." Osborne v. Osborne, 384
Mass. 591, 598, 428 N.E.2d 810 (1981). However, to be
enforceable, the agreement must be valid at the time of
execution and must also be fair and reasonable at the time
of divorce. DeMatteo v. DeMatteo, 436 Mass. 18, 26,
762 N.E.2d 797 (2002). In order to be valid at the time of
execution, the judge must determine whether "(1) [the
agreement] contains a fair and reasonable provision as
measured at the time of its execution for the party
contesting the agreement; (2) the contesting party was fully
informed of the other party's worth prior to the agreement's
execution, or had, or should have had, independent knowledge
of the other party's worth; and (3) a waiver by the
contesting party is set forth." Id., quoting
Rosenberg v. Lipnick, 377 Mass. 666, 672, 389 N.E.2d 385
(1979). In determining whether an agreement was fair and
reasonable at the time of execution, "reference may
appropriately be made to such factors as the parties'
respective worth, ... ages,... intelligence, literacy,
business acumen, and prior family ties or commitments."
Rosenberg v. Lipnick, supra at 672, 389 N.E.2d 385. An
agreement, even a one-sided agreement that leaves the
contesting party with "considerably fewer assets" and
imposes a "far different lifestyle after divorce" than she
had during the marriage, is fair and reasonable unless "the
contesting party is essentially stripped of substantially
all marital interests." DeMatteo v. DeMatteo, supra
at 31, 762 N.E.2d 797.

Where an agreement is valid at the time of
execution, a judge must take a second look at its provisions
at the time of divorce. Id. at 34-35, 762 N.E.2d 797.
At that time, the agreement will be enforced "unless, due to
circumstances occurring during the course of the marriage,
enforcement ... would leave the contesting spouse `without
sufficient property, maintenance, or appropriate employment
to support' herself." Id. at 37, 762 N.E.2d 797,
quoting 1 H.H. Clark, Jr., Domestic Relations in the United
States § 1.9 (2d ed.1987). We turn first to the validity of
the agreement at the time it was executed.

In concluding that the agreement was not fair and
reasonable as to alimony for the wife at the time of its
execution, the judge stated: "Although at the time it may
have been reasonable to for[]go alimony because she was
employed and was young and healthy, ... it was not fair and
reasonable at the time of execution for [the wife] to
for[]go all possible alimony and support given the great
disparity of earning potential of the parties." The wife was
employed at a department store in Boston, and the husband
had various business interests. The judge noted that the
wife entered the marriage intending to build a life with the
husband and "rightfully believed that what they built
together would belong to both of them," but that the husband
made "it his mission ... to prevent the creation of joint
marital assets."7
Although it is important to our analysis, the judge did not
address the provision of the agreement that created support
for the wife based on, among other things, length of
marriage and employment, in the event a jointly owned
marital home did not exist at the time a divorce complaint
was filed.

The judge's findings do not permit the conclusion
that the wife was "essentially stripped of substantially all
marital interests," which is the standard required to
declare an agreement invalid at its execution.8
DeMatteo v. DeMatteo, supra at 31, 762
N.E.2d 797. Disparity of income that has the potential to
leave one spouse in an essentially different lifestyle is
not a valid basis for determining that the agreement was
invalid at its execution. Id. Moreover, "[w]here
there is no evidence that either party engaged in fraud,
failed to disclose assets fully and fairly, or in some other
way took unfair advantage of the confidential and emotional
relationship of the other when the agreement was executed,
an agreement will be valid unless its terms essentially
vitiate the very status of marriage." Id.

Here there is no evidence of the husband's taking
unfair advantage of the wife at the time the agreement was
executed. The wife's attorney drafted the agreement, after
he had advised her not to sign an agreement prepared by the
husband's attorney. Furthermore, as discussed, the judge
found that the wife was fully aware of her rights and
knowledgeable about alimony, property division, and child
support. The agreement provided that the wife's separate
premarital property would remain hers and not be
incorporated into marital assets. Cf. Rice v. Rice,
372 Mass. 398, 400, 361 N.E.2d 1305 (1977) (judge has
"discretion to assign to one spouse property of the other
spouse whenever and however acquired"). The agreement
permitted the wife a joint interest in marital assets and
provided that "any appreciation on the marital home or such
home as the parties reside as their last marital home at the
time of separation, whether due to market forces or capital
investment," be divided as a marital asset, even if the
husband held sole title to the property. Most important, the
agreement entitled the wife to relocation and "support" from
the husband if there were no jointly owned marital home at
the time of a divorce, "based upon such considerations ...
as are cognizable under domestic relations and property
laws" of the relevant jurisdiction. In short, the agreement
provided for either funds from a capital asset or access to
support, utilizing standard factors such as those now
codified in Massachusetts in G.L. c. 208, § 34. When they
were married, the couple resided in the husband's
condominium unit. Therefore, it was reasonably foreseeable
that a home owned by the husband would exist in the event of
a divorce. There is nothing in this record that would allow
us to conclude that the agreement vitiated the status of
marriage by stripping the wife of "substantially all marital
interests." DeMatteo v. DeMatteo, supra at 31, 762
N.E.2d 797. Accordingly, the agreement was valid at the time
it was executed. Had the wife been dissatisfied with the
terms of the agreement, she could have refused marriage. See
id. at 34, 762 N.E.2d 797.

Our conclusion that the agreement is valid
requires us "to consider whether there is any reason not to
enforce it." Id. We begin by noting that, although he
was not required to do so after he found the agreement to be
invalid at the time of execution, the judge also found that
the agreement concerning alimony was invalid at the time of
divorce. He stated that the wife had spent ten of the twelve
years of marriage as a homemaker, completely dependent on
the husband, and given her lack of education,9
was "not in a position to secure income which would maintain
the lifestyle that she achieved [for her and her daughter]
during the marriage."

In the DeMatteo case, the court held that
the so-called "second look" at the agreement "is to ensure
that the agreement has the same vitality at the time of the
divorce that the parties intended at the time of its
execution." Id. at 37, 762 N.E.2d 797. The agreement
must be enforced unless circumstances such as the mental or
physical deterioration of the contesting party, or erosion
of promised support by inflation, would lead the court to
conclude that the agreement was not conscionable and that
its "enforcement ... would leave the contesting spouse
`without sufficient property, maintenance, or appropriate
employment to support herself.'" Id., quoting 1 H.H.
Clark, Jr., Domestic Relations in the United States § 1.9
(2d ed.1987). In the DeMatteo case, the court
rejected as insufficient the factors the judge had relied on
to determine that an antenuptial agreement with "less than
modest" financial provisions for the wife was invalid:
lifestyle during the marriage, vast disparity in the
parties' ability to acquire assets, and the fact that it was
a ten year marriage that produced two children. Id.
at 38, 762 N.E.2d 797. The court stated that "the wife was
fully apprised of the husband's holdings before she agreed
to these `less than modest' arrangements." Id. In
fact, the court recognized that one spouse's share of the
marital assets may be "disproportionately small."10Id. at 37, 762 N.E.2d 797.

Here, there has been no physical or mental
deterioration of the wife. She was self-supporting during a
period of separation prior to their marriage. The wife has
the marital home worth $1,275,000 and was awarded $525,000
in cash. She was allowed to keep many of the contents of the
marital home, including jewelry acquired since the marriage
worth $74,000. Given the assets she has been awarded, we
cannot say that the agreement leaves the wife without
sufficient property and maintenance.

Conclusion. For the reasons set forth
above, we conclude that the agreement is enforceable and
vacate the judge's order to award the wife alimony.

So ordered.

---------------

Notes:

1. After the parties were
married, they lived in a condominium unit owned by the
husband.

2. The agreement preserved
the parties' rights concerning support and custody of their
child.

3. The paragraph waiving
alimony states that both parties "understand that any waiver
or modification of their right [to alimony] may be voidable
under certain circumstances and may be subject to
reconsideration by a court of competent jurisdiction."

4. For purposes of this
appeal, the wife does not contest the judge's findings that
she was fully informed of the husband's net worth prior to
marriage and that the agreement contains a waiver.

5. The marital home is
subject to a $154,000 mortgage.

6. The husband also
appealed from the judge's decision concerning visitation
with his child. That issue was decided by the Appeals Court
and was not raised in the husband's application for further
appellate review. Austin v. Austin, 62 Mass.App.Ct.
719, 722, 819 N.E.2d 623 (2004).

7. The judge did not find
that the husband breached the prenuptial agreement or
fraudulently diverted or concealed marital assets. In such
circumstances, the judge would have the equitable power to
design a remedy, such as adjusting the distribution of
assets, regardless of whether the agreement itself was valid
either at its execution or at the time of divorce. See
Anderson v. Anderson, 354 Mass. 565, 567, 238 N.E.2d 868
(1968) (discussing Probate Court's equity jurisdiction);
C.P. Kindregan, Jr., & M.L. Inker, Family Law and Practice §
71:2 (3d ed. 2002 & Supp.2005) (same); Bak v. Bak, 24
Mass.App.Ct. 608, 624, 511 N.E.2d 625 (1987) (affirming
court's judgment that real estate that husband fraudulently
transferred to his mother be held against husband's alimony
payments).

8. The judge's decision
concerning the agreement's validity was issued approximately
one month before our decision in DeMatteo v. DeMatteo,
436 Mass. 18, 762 N.E.2d 797 (2002). The DeMatteo
case was called to the court's attention by the husband in
motions he filed in August, 2002. Neither party contests the
fact that the DeMatteo decision, which clarified the
standards to be applied to antenuptial agreements, applies
to this case. Id. at 30-31, 35, 762 N.E.2d 797. See
generally Schrottman v. Barnicle, 386 Mass. 627,
630-631, 437 N.E.2d 205 (1982).

9. The wife was born in
1952 and has a high school education.

10. Contrary to the
suggestion of the dissent, post at 610, 839 N.E.2d at
844, today's decision reaffirms our holding in DeMatteo
v. DeMatteo, supra, that at a first stage inquiry, a
prenuptial agreement must be found to be valid, a
determination that includes, inter alia, a finding that the
agreement "contains a fair and reasonable provision as
measured at the time of its execution for the party
contesting the agreement." Id. at 26, 762 N.E.2d 797,
quoting Rosenberg v. Lipnick, 377 Mass. 666, 672, 389
N.E.2d 385 (1979).

---------------

GREANEY, J. (dissenting, with whom Spina, J.,
joins).

The court today denies a woman, in her fifties,
with a high school education, low potential earning
capacity, and a child to raise, her right to receive
alimony. The linchpin of the court's decision, which
pertains to the first standard stated in Rosenberg v.
Lipnick, 377 Mass. 666, 672, 389 N.E.2d 385 (1979), for
determining the validity of an antenuptial agreement, is the
following statement:

"The judge's findings do not permit the
conclusion that the wife was `essentially stripped of
substantially all marital interests,'[1]
which is the standard required

Ante at 605, 839 N.E.2d at 841-842. The
court erroneously applies this standard.

As noted, the critical time frame is the time
of execution of the agreement. DeMatteo v. DeMatteo,
supra at 30, 762 N.E.2d 797. Significantly, at that
time, the wife did not simply agree to take less than what
she might have received under G.L. c. 208, § 34. Instead,
she relinquished her right to both alimony and any claim on
the husband's assets, essentially giving up substantially
all marital interests. Contrast DeMatteo v. DeMatteo,
supra at 22, 34, 762 N.E.2d 797 (explaining that,
although it gave wife less than she would have received
under G.L. c. 208, § 34, antenuptial agreement did not strip
wife of her marital rights because it provided her, at the
time of its execution, with a mortgage-free house, an
automobile, medical insurance, and lifetime alimony). While
the agreement did not impair the wife's right to seek her
share of the marital assets in the event of divorce, there
were no marital assets at the time she executed the
agreement. The wife, in substance, was given nothing under
the agreement. The agreement contemplated only potential
marital assets that might be acquired after marriage.
Further, although the agreement contemplated the possibility
of a future marital residence, it had a provision relating
to circumstances where the parties lived together "in a
residence owned by only one of them," and, as noted by the
Appeals Court, "there is ... nothing in the agreement
requiring [the husband] to provide a home for [the
wife]" (emphasis added). Austin v. Austin, 62
Mass.App.Ct. 719, 720 n. 2, 819 N.E.2d 623 (2004). Contrary
to the court's statement, if no jointly owned marital home
existed at the time of the divorce, the agreement required
the husband only to "assist" the wife "in her relocation and
support," with absolutely no monetary obligation specified
or required. Thus, at the relevant time, namely, when the
agreement was executed, the wife essentially gave up all her
marital rights.

The parties did subsequently acquire assets
during the marriage, and the wife ultimately received a
share of the assets. Consideration of that fact, however, is
appropriate if it becomes necessary to take a "second look"
at the agreement, a step required only after it has been
determined (at the time of the first look) that an agreement
is valid. DeMatteo v. DeMatteo, supra at 34, 762
N.E.2d 797. There is no need to reach that consideration in
these circumstances. The Appeals Court, in a well-crafted
opinion, saw the flaw in the husband's arguments and voided
the agreement in first-stage examination for the reasons I
have described. See Austin v. Austin, supra at 727,
819 N.E.2d 623 ("In so doing [namely, concluding that this
agreement should not be enforced], we do not consider the
circumstances at the time of the divorce, including whether
either party has accumulated additional assets since the
agreement was made. That inquiry occurs during the `second
look' stage, when a court deciding whether and to what
extent to enforce a valid term of the agreement must assess
if it is `conscionable' to do so. DeMatteo v. DeMatteo,
436 Mass. at 38 [762 N.E.2d 797]"). Thus, the court has
analytically transposed the proper order that governs
examination of the validity of antenuptial agreements. In so
doing, it has implicitly overruled portions of the
DeMatteo decision that hew closely to the traditional
two-stage analysis,

Page 845

holding, without expressly saying so, that an agreement,
perhaps proper at the second look, is valid for all
purposes, even if it is nugatory at the time of execution.

For these reasons, I respectfully dissent.

---------------

Notes:

1. This language appeared
for the first time in DeMatteo v. DeMatteo, 436 Mass.
18, 762 N.E.2d 797 (2002), which was decided after the judge
had entered his decision concerning the validity of the
agreement.